Citation Nr: 18152932 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 14-31 377 DATE: November 27, 2018 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for fatigue is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to service connection for a uterine disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for a psychiatric disorder, to include panic disorder, anxiety disorder, and unspecified attention deficit/ hyperactivity disorder, is remanded. Entitlement to service connection for temporomandibular joint syndrome (TMJ) is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from January 1988 to January 1990 and from November 1990 until May 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, In April 2018 the Veteran presented testimony at a travel board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. 1. Entitlement to service connection for a low back disorder is remanded Remand is required to secure an adequate VA examination to determine the etiology of the Veteran’s low back disorder. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In January 2016 and other statements, the Veteran has asserted that her back disorder is due to service or is caused by her uterine fibroids. Additionally, January 2004 private treatment records indicated the Veteran’s low back pain was related to her uterine disorder. The Veteran received a VA examination in November 2012. The examiner opined that the Veteran’s low back disorder was more likely due to the leg length discrepancy that pre-existed military service. The Veteran’s enlistment examination noted a normal spine and lower extremities. When a preexisting condition is not noted upon entry into service, the Veteran is presumed to have been sound upon entry. 38 C.F.R. § 3.304. The examiner did not address secondary service connection or whether the pre-existing leg length discrepancy was a congenital defect with a superimposed disease (the back disorder). Although the Veteran’s VA treating physician submitted a positive nexus opinion in March 2013, the physician did not provide a rationale only a restatement of the evidence in the record. The opinion, therefore, is insufficient upon which to grant service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, remand is required to secure an adequate examination. 2. Entitlement to service connection for a uterine disorder. Remand is required to secure an adequate VA examination to determine the etiology of the Veteran’s uterine disorder. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran received a VA examination in July 2016. Th examiner opined that the uterine condition was less likely than not cause by complaints during service. The examiner stated that symptoms of uterine fibroids include abnormal menstrual bleeding and the Veteran did not report such symptoms during service. A May 1989 service treatment record, however, showed the Veteran reported heavy bleeding. During the April 2018 Board hearing, the Veteran reiterated that she had heavy bleeding, severe cramps, and irregular menstrual cycles during service. Accordingly, remand is required to address the Veteran’s symptoms during service. 3. Entitlement to service connection for headaches. Remand is required for a VA examination to determine the etiology of the Veteran’s headaches. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran alleges her headaches are a physical manifestation of her anxiety. At the April 2018 Board hearing, the Veteran stated her headaches began when she first experienced anxiety during service. The Veteran stated sought treatment during her second period of service from a Chaplin. The Board notes the VA made a formal finding of unavailability for those service treatment records (STRs) in March 2017. Additionally, in September 2012, the VA made a formal finding of unavailability of STRs for the second period of service. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 4. Entitlement to service connection for a psychiatric disorder, insomnia, and fatigue. Remand is required to secure an adequate VA examination to determine the etiologies of the Veteran’s physiatric disorder, insomnia, and fatigue. During the April 2018 Board hearing the Veteran stated she believed her insomnia and fatigue were related to her psychiatric disorder. In a January 2016 statement, the Veteran stated each disorder was secondary to her uterine disorder. The Veteran received a mental health VA examination in July 2016. The examiner stated that the disorder existed prior to service. Then, the examiner opined that the anxiety disorder is less likely than not permanently aggravated by the uterine disorder. The examiner also opined that it is less likely than not the insomnia is due to, or exacerbated by, the uterine disorder. The examiner did not address direct service connection or fatigue. Additionally, the examiner only provided an aggravation opinion for anxiety disorder. Every Veteran shall be taken to have been in sound condition when accepted for service except as to defects, infirmities, or disorders noted at the time of acceptance; or, where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment, and was not aggravated by the Veteran’s period of active service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran’s enlistment examination did not note any psychiatric disorders. Additionally, a March 1985 private treatment record showed a diagnosis of chemical dependency with no evidence of a major affective disorder. There is no evidence that an anxiety disorder clearly and unmistakably existed before acceptance and enrollment. Accordingly, remand is required to address direct service connection. 5. Entitlement to service connection TMJ. Lastly, remand is required for a VA examination to determine the etiology of the Veteran’s TMJ. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. At the April 2018 Board hearing the Veteran stated she was found medically unfit for deployment because of her TMJ. In December 1990, service personnel records (SPRs) showed the Veteran was deemed medically unfit for deployment. As previously noted, the VA made a formal finding of unavailability of STRs from November 1990 to May 1991. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her low back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the low back disorder had onset in, or is otherwise related to, active military service. Second, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the low back disorder is caused or aggravated by the uterine disorder. Third, the examiner must also provide an opinion if the congenital leg length discrepancy is a defect, if the Veteran’s low back disorders are an additional disability due to disease or injury superimposed upon the leg length discrepancy during service. The examiner must specifically address, 1) the Veteran’s assertions of an in-service symptoms of severe cramps and back pain; 2) January 2004 private treatment records that showed low back pain was related to a uterine disorder; 3) the complaints of low back pain contained in the Veteran’s STRs; 4) the November 2012 VA examination; and 5) the March 2013 VA physician opinion. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her uterine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the uterine disorder had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s assertions of an in-service onset of fibroid symptoms. The examiner must also specifically address the irregular menstrual cycles, heavy bleeding, and severe cramps contained in the Veteran’s STRs. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her headaches. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the headaches had onset in, or are otherwise related to, active military service. Second, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the headaches are caused or aggravated by the psychiatric disorder. The examiner must specifically address the Veteran’s assertions of an in-service anxiety that manifested as headaches. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any diagnosed psychiatric disorder, to include panic disorder, anxiety disorder, and unspecified attention deficit/ hyperactivity disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must determine all of the Veteran’s diagnosed psychiatric disorders. The examiner must specifically determine if panic disorder, anxiety disorder, and unspecified attention deficit/ hyperactivity is present. If no psychiatric disorder is found, the examiner must address the prior diagnoses of panic disorder, anxiety disorder, and unspecified attention deficit/ hyperactivity. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed psychiatric disorder, had onset in, or is otherwise related to, active military service. Third, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that each diagnosed psychiatric disorder is caused or aggravated by the uterine disorder. Fourth, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that insomnia is caused or aggravated by a psychiatric disorder. Lastly, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that fatigue is caused or aggravated by a psychiatric disorder. The examiner must specifically address the Veteran’s assertions of in-service anxiety and feelings of being overwhelmed, to include her testimony at the 2018 Board hearing that she began feeling anxiety during her service during the Desert Storm era. 7. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her TMJ. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the TMJ had onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran’s assertions of 1) in-service onset of TMJ and 2) TMJ being the reason the Veteran was declared medically unfit for deployment. The examiner must also specifically address orders declaring the Veteran was medically unfit for deployment contained in the MPR. 8. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel